Local environmental Problems

In late March 2016, North Carolina took front stage in national political news. The legislature convened for a one-day special session to pass a bill preventing local governments from enacting anti-discrimination ordinances. Some of the news coverage, national and state, addressed the general issue of the legislature’s stripping power away from local governments in other areas, notably local government structure, taxing authority and infrastructure ownership.

Over the past five years, the North Carolina legislature has also stripped the state’s local governments of many of their powers to regulate environmental threats. This trend has not been widely reported. In this entry I will catalog some of the recent changes in local government’s environmental regulatory powers–all of them reductions in such powers.

These changes also should be viewed in a longer historical context, however. There has been dynamic ebb and flow between local governments, the State, and the federal government in power to regulate the environment ever since the passage in the 1970s and 1980s of the nation’s major federal environmental statutes. This entry will also go back to the start of the State of North Carolina and describe what I see as five major periods with different arrangements of local versus State environmental regulatory power:

A Preindustrial era of purely local control (1700s to 1900)
Early industrial era of State floors with local flexibility (1900 to 1970)
Late industrial era of federal mandates with potential State flexibility, limited in NC by the legislature (1970 to 1990)
Postindustrial era of federal and State “devolution” of power, yielding many localized or “place-based regulations” (1990s to 2010)
Great Recession and post-recession era clampdown on agency and local environmental discretion (2011 to present)

An important feature of all this ebb and flow is that new eras never completely wiped out the programs and laws created in early eras. The power swished around like water beneath coastal piers, but the old programs often remained, like barnacles, some alive and others just crusty hulks of their former living selves. I will start with the recent era and work backwards in time. Some of the most interesting legal problems are presented by the persistence of those earliest barnacles.

By way of context, North Carolina is a “modified Dillon’s Rule” state. When the question is “Can a North Carolina local government legally do this or that?” the first steps in answering are to determine whether the legislature has authorized the local government to act in this or that way, and then to consider whether State or the federal government has preempted the local action. There is an additional layer of complexity in analyzing local government environmental authority questions in North Carolina. That is the State Constitution’s environmental provision, rarely construed by courts.

In 2013, the North Carolina General Assembly passed a provision that began as a bar to any local environmental ordinances. As passed, it was a “Temporary Limitation on Environmental Ordinances by Cities and Counties” (SL 2013-413).

SECTION 10.2(a) “Notwithstanding any other provision of law and except as authorized by this section, a city or county may not enact an ordinance that regulates a field that is also regulated by a State or federal statute enforced by an environmental agency or that regulates a field that is also regulated by a rule adopted by an environmental agency. A city or county may enact an ordinance that regulates a field that is also regulated by a State or federal statute enforced by an environmental agency or that regulates a field that is also regulated by a rule adopted by an environmental agency if the ordinance is approved by a unanimous vote of the members present and voting.”

This provision sunsetted by its own terms on Oct. 1, 2014. Another of the recently annual “Regulatory Reform” bills passed in the 2014 Session did not continue the bar on local action. Hearings in the interim had shown there was no real problem with local governments in the State enacting crazy environmental ordinances.

However, the sunset of this global restriction on local environmental ordinances did not signal renewed State support for local regulation generally. Instead, the legislature moved in 2014 and 2015 to preempt or otherwise ban particular, disparate types of local environmental protection. Most widely discussed and publicized were bans on local regulation of oil and gas exploration (“fracking”) and coal ash disposal, a hot topic thanks to a major spill in 2014.

Oil and gas exploration & development aka “fracking” (GS 113-415.1, 2015)(no local role plus unique State administrative review)
Coal ash disposal reform (GS 130A-309.205, SL 2014-122) (no local role plus similar State administrative review of allegedly infringing local ordinances)

But fossil fuel interests weren’t the only ones that the legislature sought to protect from local regulation. A wide variety of bans and restrictions on local water pollution protection efforts were enacted to help profits of land developers.

The General Assembly prominently curtailed local efforts to improve stormwater quality, in several ways:

Stormwater programs that require state approval (GS 143-214.7, 2015) must submit ordinances for State re-review by March 1, 2016, to ensure they are no more stringent than the State requires. A Department of Environmental Quality interpretive memo (Jan 2016) sought to narrow this ambiguous statute by stating that it is only for State-run programs that are delegated to local governments at their request—not for programs that local governments are required to have.
Stormwater programs shall not impose “new or increased stormwater controls for (i) preexisting development or (ii) redevelopment activities that do not remove or decrease existing stormwater controls. (SL 2014-90, GS 214.7(b3)).
Other narrow, particular changes (e.g. for coastal stormwater regulations) may affect local ordinances.

Restrictions on local regulation of water quality weren’t limited to stormwater. Other provisions passed by the North Carolina legislature from 2013 through 2015 include:

Riparian buffers (GS 143-214.23A, 2015) can be wider than State standards only with demonstration of scientific need.
Rules declared by State to be “voluntary” or with legislatively delayed effective date (H44, SL 2015-246, sec. 2) cannot be enforced by local ordinances. Presumably (but not clearly) this provision was aimed at implementation of the Jordan Watershed Nutrient Rules, and perhaps also the rules attempting to clean up excess nutrients in Falls Reservoir.
No local action that discourages private well drilling (GS 87-97(e) & SL 2011-255).
Standardized State forms for drinking water well certification and well identification details with no ability for local customization (GS 87-97(a1) & SL 2014-120, sec. 43).
Thirty day time limit for issuing local well permits (SL 2013-121, sec. 35).
Transfer of City of Asheville water system assets to Metro Water & Sewer District (SL 2013-50).

There were also legislatively-imposed limits on local air pollution control programs:

Limits on city regulation of open burning in extraterritorial jurisdictions (160A-193(c), 2014).
No local air regulation of combustion sources like heaters, fireplaces (GS 143-215.112(c)(6), 2014).

There was even a cut in the local environmental powers that have the longest tradition of local autonomy, the power to regulate solid waste in a given community:

No local regulation of storage of non-hazardous recyclable materials like asphalt pavement & shingles unless within 200 yards of residences (GS 130A 309.09A, SL 2013-413, sec. 50).